[부동산소유권이전등기등에관한특별조치법위반][미간행]
[1] Whether it is possible to commit a crime in the form of an indirect and indirect crime under Article 13(1)3 of the Act on Special Measures for the Registration, etc. of Ownership Transfer of Real Estate (affirmative)
[2] The case holding that, where a person who is not a guarantor has made a false guarantee to prepare a false guarantee certificate using a guarantor who has no intention to prepare a false guarantee certificate, an indirect crime of preparing false guarantee certificate under Article 13 (1) 3 of the Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate is established
[1] Article 13(1)3 of the Act on Special Measures for the Transfer, etc. of Real Estate Ownership; Article 34(1) of the Criminal Act / [2] Article 13(1)3 of the Act on Special Measures for the Transfer, etc. of Real Estate Ownership; Article 34(1) of the Criminal Act
[1] [2] Supreme Court Decision 97Do1180 delivered on July 11, 1997 (Gong1997Ha, 2586)
Defendant
Prosecutor
Gwangju High Court Decision 2009No121 Decided July 16, 2009
The non-guilty part of the judgment below shall be reversed, and that part of the case shall be remanded to the Gwangju High Court.
We examine the grounds of appeal.
According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance that acquitted the defendant of this part of the facts charged on the ground that the defendant prepared a false guarantee certificate among the facts charged in this case is limited to the guarantor who is the preparation title, and that the defendant who is not the guarantor can not commit the crime of preparing a false guarantee certificate in the form of indirect principal offense by using the guarantor who has no intent to prepare a false guarantee certificate, and that he could not commit the crime of preparing a false guarantee certificate in the form of indirect principal offense.
However, even if it is not a guarantor, an indirect crime shall be established if the guarantor intentionally without intent to prepare a false guarantee certificate has made the guarantor prepare a false guarantee certificate (see Supreme Court Decision 97Do1180 delivered on July 11, 197). In the records, this part of the facts charged is obvious that the defendant committed an indirect crime, and therefore, the court below acquitted this part of the facts charged, which is ultimately erroneous in the misapprehension of legal principles as to the preparation of false guarantee certificates and indirect crimes as stipulated in Article 13 (1) 3 of the Act on Special Measures.
Therefore, the non-guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Hong-hoon (Presiding Justice)